CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 23, 2023

Bennardo & Glover on Crimes Against Probate

Kevin Bennardo and Mark Glover (University of North Carolina School of Law and University of Wyoming College of Law) have posted Crimes Against Probate (75 Florida Law Review 357 (2023)) on SSRN. Here is the abstract:
Policymakers have increasingly turned their attention to wrongdoing that affects wills, such as the forgery of wills, the procurement of wills through coercion or deceit, and the destruction or suppression of wills. In particular, they have attempted to deter this misconduct by punishing wrongdoers through new forms of criminal and civil liability. Because the United States is on the precipice of the largest intergenerational wealth transfer in history, a significant portion of which will take place through wills, these attempts of deterrence are well-intentioned. However, their implementation has been flawed.

These implementation difficulties stem from the fact that a will has no legal effect until the testator’s death. Because the consequences of misconduct affecting wills are delayed until after the victim’s demise, policymakers have stretched traditional conceptions of criminal law and tort law to fit situations to which they do not easily apply. Specifically, they have created crimes akin to theft that punish conduct that does not deprive the testator of property rights during life and torts that remedy property harms inflicted upon a deceased victim who arguably can suffer no more harms. Current conceptions of criminal and civil liability for wrongdoing affecting wills are therefore riddled with theoretical and doctrinal shortcomings.

To remedy these shortcomings, this Article reconceptualizes wrongdoing affecting wills as evidentiary misconduct. A will is documentary evidence of a testator’s intent that probate courts use to determine how the testator’s property should be distributed upon death, and misconduct that affects a will diminishes its evidentiary value. When wrongdoing affecting wills is framed as evidentiary misconduct that impedes the functioning of probate courts, rather than as property offenses, sounder theoretical footing for punishing this misconduct emerges. The victim is no longer the deceased testator but is instead the probate system itself.

Reframing the wrongdoing as an interference with evidence also alleviates doctrinal shortcomings of the current scheme. Misconduct involving evidence that impedes judicial proceedings is already criminalized in a variety of contexts. However, the idiosyncrasies of the probate system counsel in favor of an evidentiary crime that is specifically tailored to wills. This Article therefore proposes a new evidentiary crime, entitled Intentional or Willful Interference with Probate, that both better deters misconduct and is more easily implemented than the law’s current deterrent mechanisms.

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